Cathedral Cities: England and Wales

It is generally understood that there is a connection between cities and cathedrals. Possession of a cathedral church is said to confer city status on a municipality.

Despite having a population of approximately 800,000, the local government of Leeds is directed from a mere town hall. Leeds does not have a city hall because it does not have a cathedral. (Actually it does have a cathedral – very near the town hall – but only a Catholic one, which does not count, of course.)

Phillimore’s Ecclesiastical Law (2nd edition 1895) holds that

‘every town which has a see of a bishop placed in it is thereby entitled to the honour of a city … Lord Coke defines a city … [as] a borough incorporate which hath, or hath had, a bishop‘ (p.126).

Thus it is the bishop that confers city status, rather than the cathedral. However, the distinction is generally immaterial. An episcopal see is simply a seat (sedes). The cathedral is ‘the seat of the bishop’, the place where his cathedra or chair of office is kept, hence its name (cf Cathedrals Measure 2021, s.1(a)). Where the cathedral is, there is the bishopric.

The distinction may be relevant to Leeds. In 2014 a new diocese of Leeds was created. So Leeds now has its own diocesan bishop. But it still lacks an Anglican cathedral. So the Bishop of Leeds apparently has no seat in Leeds.

Only a diocesan bishopric confers city status. A mere suffragan see will not suffice. The Suffragan Bishops Act 1534 provides that ‘the towns of Thetford, Ipswich, Colchester, Dover [etc] … shall be taken and accepted for sees of bishops suffragan’ (s.1 – see also Suffragans Nomination Act 1888, s.2). Phillimore adds that ‘the suffragans have their sees in towns; and not in cities’ (p.78).

Phillimore also states that the common law rule of city status ‘extends not to the cathedral churches in Wales, divers of which are established in small villages’ (p.126). Possession of a bishopric or a cathedral does not, per se, turn a Welsh village or town into a city.

Our late Queen conferred city status on St. David’s in Wales, by letters patent, when she visited the cathedral in 1995. St David’s is said to be the smallest city in Britain.

This gracious royal gesture proves Phillimore’s dictum. Her Majesty could not have conferred city status on St. David’s if St. David’s was already a city at common law by virtue of having a cathedral.

Although it has been a suburb of Cardiff for more than 100 years, Llandaff is sometimes described as a ‘city’, because of the cathedral. A signpost sponsored by the Llandaff Society proudly welcomes visitors to ‘a city within a city’ (a bit like the Vatican and Rome, perhaps!). The local primary school, which always used to be referred to simply as ‘the village school’ now rejoices in the title Llandaff City School.

These assertions can only be correct if Llandaff possesses a royal charter or letters patent similar to those granted to St. David’s (or perhaps an Act of Parliament). The author of this blog (who is himself a ‘citizen’ of Llandaff) has consulted 3 local historians, as well as ‘Professor Google’. Evidently none of them is aware of the existence of such a document. If no such document exists, then Llandaff cannot be a city.

A Defence of the Public Worship Regulation Act 1874

Although the 1874 Act singularly failed to live up to its title, it did introduce one reform that has endured to the present day.  By s.7, it combined the 3 most senior judicial offices of the Church of England in a single officeholder

(1) the Dean of the Arches, the Archbishop of Canterbury’s provincial judge

(2) the Auditor, the Northern equivalent of the Dean and

(3) the Master of the Faculties, the official who exercises the Archbishop of Canterbury’s special faculty jurisdiction over both English Provinces, to grant licences to marry and to practice as a notary public.

As a result of the Act these 3 offices, like the Trinity, are 3 in 1 and 1 in 3.  The Dean of the Arches and Auditor (and Master of the Faculties) is in effect the Lord Chief Justice of the Church of England.  Ms Morag Ellis KC is the current holder of the 3 combined offices.

The Public Worship Regulation Act was a response to illegal ritualism, i.e illegal liturgical practices.  Such practices involved 

(1) ornaments of worship – whether of the fabric of the church (or churchyard), the movable furniture therein, or the vestments worn by officiating ministers.  In 1874, these were governed by the famous Ornaments Rubric of the Book of Common Prayer.

(2) rites and ceremonies.  Rites are the words used in public worship.  Ceremonies are liturgical acts or gestures.  These were likewise governed by the rubrics and other directions contained in the Prayer Book.

The purpose of the Act was therefore to uphold the rules of public worship laid down by the Book of Common Prayer (cf.s.8). 

Before the 1874 Act, ritualist clergy were prosecuted under the Church Discipline Act 1840.  However, such prosecutions were very expensive and could last several years.  The primary object of the 1874 Act was therefore to reduce expense and delay.  (This was the reason for combining the senior judicial offices in a single judge.)  However, the Act was also intended to conciliate the offending ritualists.

The 1874 Act did not repeal the 1840 Act.  It merely provided an alternative procedure (cf. s.5). An incumbent whose case was decided under the 1874 Act could not be proceeded against under the 1840 Act (or vice versa) (1874 Act, s.18).

The great difference between the Church Discipline Act and the Public Worship Regulation Act is that, while the former was criminal and penal in character, the latter provided a civil procedure.

The Public Worship Regulation Act sought to decriminalise ritualism, and treat it as a civil wrong instead.  Its purpose was not to punish past offences but to secure future compliance. 

It is, of course, particularly ironic that a law intended to decriminalise ritualism resulted in ritualist clergy being sent to prison.

Thus the 1874 Act provided that ‘Proceedings taken under this Act shall not be deemed to be such proceedings as are mentioned in the [Church Discipline] Act, s.23’, i.e that such proceedings are not a ‘criminal suit or proceeding’. The Act deliberately eschewed the language of criminal law and clergy discipline.  Hence the use of the word ‘regulation’, rather than ‘discipline’.  The long title of the Act refers only to ‘the better administration of the laws respecting the regulation of public worship’. 

Proceedings under the 1874 Act were commenced by a representation, not a charge (s.8).

The 1874 Act discouraged Low Church legal activism against ritualists by limiting the class of potential complainants.  Only the incumbent’s local archdeacon, his churchwarden(s) or any 3 male parishioners could make a ‘representation’ against him (s.8).  Complaints against cathedral clergy could be made by any 3 male inhabitants of the diocese (the cathedral being the parish church of the diocese).  Bishops were not subject to proceedings under the 1874 Act.

The Act also excluded old grievances.  No representation was allowed in respect of an illegal adjustment of the church fabric, if this had been completed more than 5 years previously.  Alleged illegal practices had to have occurred no more than 12 months previously.

The bishop could veto proceedings on a representation ‘after considering the whole circumstances of the case’ (s.9).  This meant that he could stop proceedings on grounds of mere expediency, even if the incumbent clearly had acted illegally.

The Act also provided a form of arbitration.  If he did not veto the proceedings, the bishop was required to invite both the incumbent and the complainant(s) ‘to submit to the directions of the bishop touching the said representation, without appeal’.  Thus the bishop could settle the dispute on a consensual basis.  The bishop’s decision, like an arbitration award, bound only the parties to the dispute.  It was not a binding judicial precedent.

The bishop’s arbitration function under the 1874 Act echoed his function in the Book of Common Prayer

‘to appease all such diversity … and for the resolution of all doubts, concerning the manner how to understand, do, and execute, the things contained in this Book: the parties that so doubt, or diversely take any thing, shall alway resort to the Bishop … who by his discretion shall take order for the quiet and appeasing of the same …’ (Preface).

The Act also permitted the parties to agree a special case, i.e an agreed statement of facts, for judicial determination of the correct law, thereby avoiding the need for a contested trial.

Only if these options were declined by the parties did the case go to a full trial, with pleadings, evidence and legal submissions. The Dean of the Arches and Auditor, who is described simply as ‘the judge’ in the 1874 Act, ‘shall pronounce judgment on the matter of the representation’ (s.9).  There was a right of appeal to the Privy Council.

The only remedies that could be awarded if a ‘representation’ was upheld were

(1) a monition or warning to the incumbent to desist from unlawful ritualism in future and / or

(2) a faculty to remove an unlawful ornament (cf.s.14).

If a warning (1) went unheeded the incumbent could be inhibited, i.e suspended from office.  Thus inhibition / suspension was not a remedy per se.  Its purpose under the 1874 Act was to enforce a monition. 

A suspension would be lifted upon the incumbent giving a written undertaking ‘to pay due obedience to [the] monition or order’ (s.13).  A suspended incumbent was allowed up to 3 years to submit.  Only then could he finally be removed from office altogether.

The Public Worship Regulation Act probably has the worst reputation of any modern ecclesiastical legislation.  It is argued that this is undeserved.  Probably very few people have actually read the Act.  Its provisions seem perfectly fair and reasonable, with nothing that is obviously objectionable.  The text of the Act gives no clue as to the controversy that it inspired.  Its moderation is in dignified contrast to the crass intransigence of the ritualists.

The fatal flaw in the Act was its naïve assumption that clergymen – of all people – would obey the law.  They did not.

That is why they had to be sent to prison.  There is no reference to imprisonment in the 1874 Act itself.  As mentioned, the Act provides no sanctions more severe than warning and suspension from office.  But the ritualists ignored these, and persisted with their illegal practices.  The court observed in the case of Serjeant v Dale that ‘Mr Dale [the ritualist] from first to last took no notice of the proceedings’ (1877) 2 Queen’s Bench Division 558 at p.561).

Mr Dale was therefore imprisoned for contempt of court, not for illegal ritualism per se.  However, this important distinction may not have been widely appreciated.

Nor was the contempt of court entirely passive.  The Reverend Mr Tooth was only incarcerated after he and a gang of supporters had physically obstructed the clergyman sent by the bishop to officiate in his place.  Once the obstruction was overcome, and the replacement clergyman safely installed, Mr Tooth was released: ‘let the order for his discharge be drawn up at once’ (Hudson v Tooth (1877) 2 Probate Division 125 at p.140).

Owen Chadwick relates that a grand total of 5 clergy were imprisoned for contempt:  The Victorian Church, vol 2 (1970) p.348.  The Reverend Mr Green’s imprisonment lasted over 18 months (‘They did not know how to get Green out’).  The others were released after a few weeks.  The aforementioned Mr Dale and Mr Tooth later had their committals quashed on technical grounds.

Why did the ritualists ignore the proceedings against them, even at the cost of imprisonment?  Chadwick suggests that ‘in their eyes a non-Anglican Parliament had no more right than the Emperor of Japan to determine [their conduct of public worship]’.  The ritualists were martyrs for the Church against the infidel secular state.

No doubt they convinced themselves of that.  However, the case for the ritualists’ martyrdom is not compelling.  Secular authority was not imposing some newfangled regime of public worship on the Church of England.  On the contrary, it sought to uphold the Book of Common Prayer, the very essence of Anglican tradition.  The 1874 procedure was indeed an Act of Parliament.  But Parliament passed the Act at the request of the bishops.  The then Archbishop of Canterbury, Archibald Campbell Tait, even drafted the original Bill himself (Oxford Dictionary of the Christian Church).  As mentioned, the Act encouraged ritualists to submit to the judgment of their bishop, an ecclesiastical authority.

Lord Selborne observed that the ritualists ‘claimed all the privileges of Establishment, while at the same time they repudiated all its conditions’ (Parliamentary Debates, Series 3, vol 219, col 949).  Their rejection of episcopal authority as well as parliamentary authority was inconsistent with a  Catholic belief in the Apostolic Succession of bishops.

(The response to the Public Worship Regulation Act reinforces the conclusion that so-called ‘Anglo-Catholic’ ritualism is neither Anglican nor Catholic, inasmuch as it repudiates both Anglican tradition and Catholic teaching.  Ritualism is just that – an exaggerated love of ritual.)

The ritualists were a small and eccentric minority.  However, their ‘martyrdom’ under the Public Worship Regulation Act was a characteristically exaggerated response to a real issue.  In the 19th century, the Anglican theocracy created at the Reformation was gradually replaced by the modern secular state.  This meant that the Church of England was governed by legislators and judges (i.e the Privy Council) who were not even nominally members of the Church.

The radical solution to this issue was Disestablishment, i.e complete severance of the link between Church and state.  Conservatives sought autonomy, a measure of ecclesiastical self-government, but maintaining the link between Church and state (with its concomitant privileges, of course).

It might be argued that the Church of England already enjoyed a measure of self-government, through the system of ecclesiastical courts.  However, even the Church courts were affected by 19th century secularisation.  Doctors’ Commons, the ecclesiastical inn of court since the 16th century, was closed in the late 1850s-early 1860s.  Sir Robert Phillimore DCL, original author of the famous commentary on ecclesiastical law, was the last inhabitant of Doctors’ Commons to officiate as Dean of the Arches.  (He was himself the son of another Doctor, Joseph Phillimore.)

When the 1874 Act was passed, Sir Robert and the then Auditor both retired, in order to facilitate the combination of their respective offices.  The first holder of both offices, the first Dean of the Arches and Auditor, was Lord Penzance. 

Lord Penzance was a retired secular judge and barrister, with no connection to Doctors’ Commons.  The Dictionary of National Biography suggests that he was a man of liberal sympathies, ‘concerned with issues of social change.  In his maiden speech [in the House of Lords] he justified the Disestablishment of the Church of Ireland …’.  This may not have endeared him to High Churchmen.  It is ironic that a supporter of Disestablishment became instrumental in sending people to prison for rejecting ecclesiastical authority.  (The way of the liberal is extremely hard!)

Apologists for the Public Worship Regulation Act correctly pointed out that Lord Penzance had the same function as his predecessors, and presided over the same courts.  However, the Church courts underwent a profound cultural change in the mid-19^th century, and the 1874 Act drew attention to this.  Ecclesiastical law ceased to be a discrete profession with its own particular body of learning and custom.  Ecclesiastical judges, like Lord Penzance, were now mere secular lawyers who happened to go to church.  And the failure of the 1874 Act did nothing to improve the reputation of ecclesiastical law and the Church courts.

The convocations were therefore the only credible vehicle for ecclesiastical self-government.  Suppressed in the early 18^th century, they were revived about the same time that Doctors’ Commons was closed down.  Chadwick relates that the practice began of proposed ecclesiastical legislation being debated by the convocations before being presented to Parliament (p.361).  Thus the failure of the Public Worship Regulation Act produced the embryo of the modern legislative procedure codified by the Church of England (Assembly) Powers Act 1919.

Phillimore suggests that the Public Worship Regulation Act was already a dead letter by the end of the 19^th century (Ecclesiastical Law, 2^nd edition 1895, p.1036).  A royal commission report of 1906 recommended repeal.  However, the Act was not repealed until as late as 1963, by the Ecclesiastical Jurisdiction Measure, s.87.

It was easier to criticise the Public Worship Regulation Act than to replace it.  A revised Book of Common Prayer was controversially rejected by Parliament in the 1920s.  The law that currently regulates public worship, the Worship and Doctrine Measure, was only passed as recently as 1974, a whole 100 years after its unfortunate predecessor.

Sede Vacante: The Administration of a Vacant Bishopric

Last year we were sadly reminded that 1 ecclesiastical office is never made vacant, even by death – that of the Supreme Head (or Supreme Governor) of the Church.   It is said that ‘the Monarch never dies’. 

The new King therefore acquired a complete and perfect title to the Crown – and thereby the Church – from the moment of our late Queen’s death.  The Accession ceremonies and proclamations, and the forthcoming Coronation, add nothing to that title.  (This is discussed further in ‘The Coronation Oath: Right and Rite’, filed under category ‘Royal Supremacy’.)

This is a constitutional difference between the Monarchy and the Holy See (the Papacy), which regularly falls vacant.

In the Roman Catholic Church there is a type of suffragan bishop, known as a coadjutor, who not only assists the diocesan bishop, but has the right to succeed him (1983 Code, canon 403(3).  (The office apparently has ancient origins.)  Thus, if a diocese has a coadjutor, there will be no vacancy in the see when the incumbent diocesan bishop leaves office.  The Bishops Resignation Act 1869 made similar provision for the Church of England, but that Act was repealed in 1951.

(Coadjutors in the Latin Church are appointed by the Pope.  The Pope is himself a diocesan bishop, of course.  Last year there was some media speculation that the present Pope might appoint a coadjutor with right of succession to himself, and thereby override the cardinals’ right to elect his successor.)

Declaring the Vacancy

The resignation or other departure of an officeholder, including a bishop, must be distinguished from a notice or declaration that the office is now vacant.

When a benefice becomes vacant, or is shortly to become vacant, the bishop gives notice to the ‘designated officer’ of the diocese, who then administers the process of appointing a new incumbent (Patronage (Benefices) Measure 1986, s.7).  When a bishop resigns, or retires at 70, the Archbishop declares the vacancy: Bishops (Retirement) Measure 1986, s.1.  When the Archbishop himself departs, the Monarch declares the vacancy by Order-in-Council.  An Order-in-Council is also required to declare a vacancy when a bishop is removed for misconduct: Clergy Discipline Measure 2003, s.24(2)).

Death in office is now very rare. Resignation and retirement are the norm, but it was not always thus.   An old edition of Halsbury’s Laws observed that ‘Avoidance [of a bishopric] in ordinary cases takes place either by death or translation [i.e moving the bishop to another diocese].  An ordinary vacancy ought to be certified to the Crown … by the dean and chapter’ (3^rd edition, 1957, p.75n).  It seems unnecessary for the dean and chapter to certify a vacancy to the Crown where the bishop is translated, because translation is by authority of the Crown, so the Crown will already be aware of the vacancy.

(Canon C23(1) provides that a vacant benefice or other vacant cure in the diocese should be notified to the bishop by the rural (area) dean.)

Temporalities

The office of bishop (and Archbishop) comprises

(1) temporalities, the proprietary rights that attach to the office.  In former times these were very considerable: ‘castles, manors, lands, tenements, parsonages, tithes … [and] rights of presentation [to benefices]’ (Halsbury’s Laws, 1^st edition, vol 11, para 781).

(2) spiritualities are the duties attached to the office.  They include ‘all manner of jurisdictions of courts ecclesiastical, such as granting licences to marry … admissions and institutions [to benefices]’ (para 782), consecrating new churches and ordaining new clergy.

When the see is vacant, temporalities and spiritualities are subject to different regimes.  There has never been any doubt that the Monarch is sole guardian of the temporalities ‘by his prerogative as founder [i.e donor] of all Archbishoprics and bishoprics, to whom during the vacancy they revert’.  The temporalities of a vacant see were formerly a lucrative source of income for the Crown.

However, the most recent edition of Halsbury’s Laws observes that ‘the temporalities of all Archbishoprics and bishoprics, except rights of patronage, are now vested in the Church Commissioners, so that it is now only rights of patronage

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that are administered by the Crown during a vacancy’ (5th edition 2011, para 209).  Such rights have no economic value.

A recent statute, cumbersomely entitled the Vacancies in Suffragan Sees and Other Ecclesiastical Offices Measure 2010, confirms the common law rule that the diocesan bishop’s rights of patronage, being temporalities, revert to the Crown during a vacancy (s.2).  However, the 2010 Measure goes on to provide that such rights are prima facie exercisable by a suffragan bishop.  Thus the right of presentation still belongs to the Crown, but it is exercised by the suffragan on behalf of the Crown, as the Crown’s representative.

The Crown may always choose to exercise the right directly: ‘Her Majesty may give notice … to the [suffragan] … that she wishes to exercise her right of presentation …’, in which case the suffragan may not do so (s.2(3)).

It may not be quite accurate to say that rights of presentation are the only temporalities remaining to a bishop.  A recent article in the Ecclesiastical Law Journal suggests that a bishop may be the legal freeholder of certain cemetery chapels (D and P McClean, ‘Shared Burial Grounds’, September 2022, pp295-308) . Although he is not its legal owner, the bishop’s private chapel may not be entered on the official list of places of worship when the see is vacant (Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.41(7)).

Spiritualities

Regulation of the spiritualities during a vacancy is more complex.  Not being a source of profit, the spiritualities were of no interest to the Crown and so were left to the Church.  Historically, guardianship was claimed both by

(1) the Archbishop of the Province and

(2) the cathedral chapter of the vacant see.

It is hard to see any modern justification for the chapter’s claim to the spiritualities.  The chapter was originally the bishop’s council or senate, assisting him to the govern the diocese.  This is presumably the basis of its claim.  However, the chapter’s diocesan responsibility ceased many centuries ago.  Since the middle ages (well before the Reformation) the chapter’s constitutional responsibility has been limited to governing the cathedral, and the cathedral itself has been constitutionally independent of the rest of the diocese.  (See various posts filed under category ‘Cathedrals’.)  Today the bishop’s council is a quite different body from the cathedral chapter (Church Representation Rules, rule 44(2)(h)).

The Archbishop’s claim to guardianship of the spiritualities is overwhelmingly stronger than the chapter’s claim.  It is inherent in his common law metropolitical jurisdiction over the Province ‘as superintendent of all ecclesiastical matters therein’ (canon C17(2)).  The chapter’s claim denies that jurisdiction.  It may amount to a contrary custom, by denying the Archbishop’s common law right.

It is therefore unsurprising that the chapter’s claim enjoys little support from commentators.  Halsbury’s Laws suggests that ‘In … most dioceses it seems that the guardianship has by long usage been exercised by the Archbishop’ (5th ed, para 210).  Moore’s Introduction to English Canon Law suggests that the dean and chapter exercise the guardianship in the diocese of Durham (4th edition 2013).  However, Mark Hill’s Ecclesiastical Law states categorically that ‘The guardianship of the spiritualities during a vacancy no longer vests in the dean and chapter’ (4th edition, p.127).

Yet canon C19, ‘Of Guardians [plural] of the Spiritualities’, though recently amended, refuses to abandon the chapter’s claim, providing that

‘Wherever a bishopric be vacant the guardianship of the spiritualities … shall be exercisable by the Chapter … unless by prescription or composition or by virtue of an enactment or other legal instrument it belongs to the Archbishop … (C19(2)).

(The recently amended version of canon C19 refers to the Crown’s rights of presentation on a vacancy, indicating a failure to appreciate that presentation is a temporality, not a spirituality.)

The Spiritual Jurisdiction of the Monarch

Admittedly the constitutional position is different when the Archbishopric itself is vacant.  An Archbishop has no episcopal superior.  The Archbishop of Canterbury is not the Archbishop of York’s superior, nor vice versa.

However, the Monarch is undoubtedly the constitutional superior of both Archbishops, ‘the highest power under God in this Kingdom, and has supreme authority over all persons in all causes, as well ecclesiastical as civil’ (canon A7). 

Yet Halsbury’s Laws specifically denies the Monarch’s guardianship of spiritualities when an Archbishopric (either Canterbury or York) is vacant (para 151).  Furthermore, it avers that

‘During a vacancy of the See of Canterbury, the dean and chapter, as guardian of the spiritualities, are empowered … to grant all such licences and dispensations throughout both provinces as may be granted by the Archbishop under the Ecclesiastical Licences Act 1533’, mostly special marriage licences.

It is true that the 1533 Act confers this power on ‘the guardian of the spiritualities’, at s.10.  But it does not identify the dean and chapter of Canterbury as guardian.  It makes no explicit reference to them at all, only to ‘the guardian of the spiritualities’.  Thus it confer power on the guardian, but does not confer guardianship on the dean and chapter, or even confirm them as guardian. A reference to ‘the guardian’ is like a reference to ‘the ordinary’ – it is capable of referring to more than 1 authority.

It is argued, contrary to Halsbury, that the Monarch does have an inherent guardianship of the spiritualities of a vacant Archbishopric, as part of the supreme authority acknowledged by canon A7.  Any guardianship exercised by the chapter is therefore subject to the Monarch’s overriding jurisdiction.

Moore’s Introduction reminds us that there is a precedent for the Monarch’s spiritual jurisdiction (3rd ed, 1993, p.22).  The late Thomas Cromwell was appointed Vicegerent in Spirituals, or royal Vicar-General, shortly after the 1533 Act was passed.  It is true that this office has never been revived since Cromwell, but, as Moore points out, it could be revived in the future.  Phillimore’s Ecclesiastical Law (2^nd edition 1895) also discusses the possibility of a royal visitation of the Church (p.1062).

It is therefore argued that, if dissatisfied with the Metropolitical chapter’s guardianship of the spiritualities, the Monarch could appoint the other Archbishop, or a third party, to exercise this function instead.

And even if s.10 of the 1533 Act does confer some right on the dean and chapter of Canterbury per se, that right would be limited to the matters referred to therein.  It would not extend to all guardianship functions.

The Modern Law

The chapter’s claim to guardianship of the spiritualities would be just and reasonable if the Chapter was still the bishop’s council, assisting the bishop to govern the diocese.  Apart from the anachronism of canon C19, and though coadjutors are no longer appointed, modern ecclesiastical law is based on a sensible policy of giving responsibility to those who now assist the bishop (rather than to those who ceased to do so many centuries ago), subject to appropriate interventions by the Archbishop, thereby ensuring a smooth transition to the new bishop.

This means that, even if the chapter’s claim to the spiritualities is admitted, the modern law effectively prevents it from being exercised in practice.

Thus the jurisdiction of other diocesan authorities continues, notwithstanding a vacancy in see.  Their jurisdiction is not ‘inhibited’ by the vacancy.  Canon C22(2) confirms that ‘Every archdeacon within his archdeaconry exercises the jurisdiction which he has therein as an ordinary jurisdiction’, i.e the archdeacon’s jurisdiction is not merely delegated by the bishop.

The Care of Churches and Ecclesiastical Jurisdiction Measure 2018 makes clear that ecclesiastical courts, whether diocesan or provincial, continue to exercise jurisdiction (s.22).  The work of the disciplinary tribunals likewise continues (Ecclesiastical Jurisdiction Measure 1963, s.12(1) – see also s.99(3) of the 2018 Measure for the Vicar-General’s Court).

A vacancy in see does not affect the function of the Vicar General, or his surrogates (2018 Measure, s.99(4)).  These are the officials responsible for marriage licences.

The Acting Bishop – or Bishops

The diocesan bishop’s own jurisdiction is regulated by the Dioceses Pastoral and Mission Measure 2007.  S.12 imposes a duty on the bishop to ‘keep under review the provision of episcopal ministry and oversight’.  It is argued that this duty includes the provision of arrangements if the bishop has to vacate his office, or becomes incapable of exercising it. 

Pursuant to his s.12 duty, s.13 authorises the bishop to delegate his official functions.  A delegation must be approved by the diocesan synod, or at least by the bishop’s council.  The only function that may not be delegated concerns the procedure for ordaining divorced and remarried persons.  Such procedure will have to await the appointment of a new bishop.

S.13 further provides that a delegation ‘may provide for it to continue to have effect … after … the bishop … ceases to hold that office’ (6).  Such a delegation ‘shall … continue … until … 6 months [after] another person becomes bishop’ (9).  The ability to exercise the Crown’s right of presentation during a vacancy in see, as discussed above, will depend on such delegation.

If appropriate delegation is lacking when a bishopric falls vacant, the Archbishop may delegate instead, under s.14.  If the Archbishopric itself is vacant, the next most senior bishop of the Province exercises this power.

Hill’s Ecclesiastical Law explains that ‘The role of acting bishop … may be exercised during a vacancy by 2 or more persons [bishops], with the functions divided between them territorially or otherwise’ (p.127).

Canon B16(2) suggests that an acting bishop cannot authorise the exclusion of a ‘notorious offender’ from Holy Communion.  Only the Archbishop can do this in a vacancy.  Likewise the power to licence a clergyman for secular occupation is reserved to the Archbishop in a vacancy under canon C28(4)).  However, it may well be argued that the 2007 Measure, which has ‘the force and effect of an Act of Parliament’, prevails over the canons, which lack such authority (Church of England (Assembly) Powers Act 1919, s.4).

The Cathedrals Measure 2021 follows earlier Measures by providing that the bishop is ex officio the Visitor of his cathedral (s.10).  Nevertheless the office of Visitor is separate and distinct from the office of bishop.  The 2021 Measure obliquely makes this point – s.9 is entitled ‘The bishop’, s.10 is entitled ‘The Visitor’.

It is therefore unlikely that the 2007 Measure empowers either the diocesan bishop or the Archbishop to delegate the Visitor’s function during the vacancy of the see.  S.14 of the Cathedrals Measure supports this view, by providing that a requirement to consult the Visitor ‘is to be ignored’ when the bishopric is vacant.

During a vacancy, the bishop’s functions under the Church Representation Rules, including those as president of the diocesan synod, are exercisable by ‘such person in episcopal orders as the Archbishop … may appoint’ (79).  This acting bishop may not delegate his functions to anyone else. 

An acting bishop may attend and speak, but not vote, at a meeting of the Upper House of Convocation, i.e the House of Bishops (canon H3).  If there is more than 1 acting bishop of the diocese, the Archbishop nominates the attendee.

The Archbishop – and the Other Archbishop

The bishop’s duty under s.12 of the 2007 Measure applies to the Archbishop qua diocesan bishop, though not qua Archbishop.  The Interpretation Measure 1925 confirms that ‘The expression ‘bishop’ in relation to the diocese of an Archbishop means the Archbishop’ (s.3).  It therefore follows that, when the Archiepiscopal see is vacant, the next most senior bishop of the Province will have the same power to delegate functions in the Archbishop’s diocese as he has over other vacant dioceses in the Province.

Although the 2 Archbishops are not each other’s superior, Hill’s commentary notes that ‘Where the Archbishopric becomes vacant … many of the functions of the Archbishop are exercised by the [other] Archbishop’.  The Archbishop’s functions under the Church Representation Rules are exercised by the other Archbishop during a vacancy (rule 79(3)). The Archbishop’s disciplinary functions over clergy and licensed lay ministers are likewise exercised by the other Archbishop: Clergy Discipline Measure 2003, s.30(6) and s.31(6), canons E6 and E8.  The Archbishops’ joint power to review an award of compensation for loss of office may be exercised by 1 Archbishop only during a vacancy (Mission and Pastoral Measure 2011, schedule 6, 6(11)).

Does a Bishop need to be Enthroned? Spiritualities and Temporalities

‘As there are 4 things required to complete a parson, presentation, admission, institution and induction: so there are 4 things analogically requisite in a making of a bishop: election … confirmation … consecration … and installation or [enthronement]’ (Bishop of St. David’s case (1699) 91 English Reports 126, p.128).

The author of this blog has long been attracted by the neatness and symmetry of this dictum.  However, when writing the preceding blogpost (‘An Apostolic Succession’), a doubt formed.  Is the dictum correct?  Consecration is certainly requisite for a bishop, as are election and confirmation, unless the bishop is appointed by royal letters patent.  But what is the purpose of installation / enthronement?

(The older ecclesiastical law held that only an Archbishop is enthroned.  Inferior bishops are merely installed.  However, the canons of the Church of England now apply the word ‘enthronement’ to the installation of a bishop as well as an Archbishop, cf. canon C15.2.)

There is an obvious analogy between the offices of benefice incumbent and diocesan bishop.  The incumbent has the cure of souls of the parish, the bishop of the entire diocese.  The bishop is in effect the incumbent of the diocese.  The cathedral is the parish church of the diocese.  However, the bishop does not have the freehold of the cathedral, as the incumbent has of the parish church.

As well as incumbent and bishop, the dictum implies an analogy between the benefice patron, who presents the incumbent, and the Monarch, who nominates the bishop.

However, there is 1 important difference between the benefice patron and the Monarch.  The patron has no title to, or control of, the proprietary rights of the benefice, the ‘temporalities’ as they are called.

Both appointment processes, for incumbents and bishops, make a distinction between

(1) the spiritual functions or ‘spiritualities’ of the office and

(2) the temporalities.

The confirmation of a new bishop’s election ‘commits to the bishop elected the care, government and administration of the spiritualities’ (Phillimore Ecclesiastical Law, 2^nd ed 1895, p.40).  Likewise, ‘the clerk [i.e the new incumbent] by institution … has the cure of souls committed to him’ (p.357). Thus there is a close analogy between confirmation and institution. They have the same effect, i.e conferring the spiritual function of the office.

Temporalities are a very different matter. An incumbent is a corporation sole at common law, and is also the freeholder of the benefice property. This means that benefice property has no legal owner during a vacancy, because there can be no corporation if there is no incumbent.

However, benefice property remains in the possession and control of the Church during a vacancy. The bishop appoints sequestrators to manage the property. The sequestrators are the bishop’s officers. The benefice patron has no involvement with the sequestration.

Thus institution confers title ad officium on the new incumbent, induction ad beneficium (cf Phillimore p.354). Induction ‘vest[s] the incumbent with full possession of all the profits belonging to the Church’ (p.359) … it instates the incumbent in full possession of the temporalities, as these are opposed to [i.e different from] the spiritual office or function [which is conferred by institution]’ (p.361).

The bishop, like the incumbent, is a corporation sole. However, unlike benefice property, the temporalities of a bishopric are not owner-less during a vacancy. Nor are they in the possession and control of the Church. On the contrary, they revert to the Crown.

At common law, all bishoprics, including all proprietary rights attached to them, are donative of the Crown, i.e held of the Crown. This means that a new bishop receives his temporalities from the Crown, not the Church.

Thus the installation / enthronement of a bishop is not analogous to the induction of an incumbent. If the bishop-elect receives his spiritualities at the confirmation of his election, and his temporalities from the Crown, it is hard to see how enthronement adds anything to his title or possession of office. (As mentioned earlier, he has no property in the cathedral, where the enthronement takes place.) Enthronement may assert or demonstrate the new bishop’s title and possession, but it does not confer this. Therefore, contrary to the dictum in the St. David’s case, enthronement is not ‘requisite in a making of a bishop’.

S.5 of the Appointment of Bishops Act 1533 provides that

‘persons being hereafter chosen elected nomynate presented invested and consecrate to the dignitie or office of any Archebishop or Byshope … and suing theire temporalties out of the Kynges handes … and makyng a corporall othe [oath] to the Kynges Hyghnes … shall and may from hensforth be trononysed [enthroned] or installed as the case shall require, and shall have and take their only restitucion out of the Kynges handes of all the possessions and profetts … belongyng to the seid Archebishoperiche or Bishoppriche …’.

Halsbury’s Laws (5th edition, 2011) paraphrases s.5 thus

‘On installation [enthronement] the bishop is entitled to restitution out of the Queen’s hands of all the possessions and profits … belonging to the bishopric …’ (vol 34).

This paraphrase may suggest that enthronement is a precondition of the temporalities, because in s.5 enthronement is mentioned before restitution of the temporalities. It is argued that this is a mistaken reading of s.5. The only precondition of receiving the temporalities is the oath to the Monarch. Once the oath has been taken, the bishop is entitled both to enthronement and temporalities. Even if, in practice, enthronement occurs before temporalities are reinstated, enthronement is still not a legal precondition of temporalities.

Phillimore explains that ‘When a new bishop is made, he may not de jure before his consecration claim the temporalities of his bishopric, although ex gratia the King by his letters patent may grant them unto him after his confirmation, and before his consecration …’ (p.65). This indicates that the bishop’s claim to the temporalities is founded on his confirmation and consecration, not on his enthronement.

The dictum in the St. David’s case may be an accurate statement of the mediaeval canon law. Canon law is unlikely to have recognised the Crown’s title to episcopal temporalities. So perhaps enthronement was indeed necessary to complete a mediaeval bishop’s title. But, as we have pointed out before, the Church of England is governed by English law, not by canon law.

Sede Vacante: How Ecclesiastical Offices are made Vacant

An ecclesiastical office can become vacant for the following reasons

(1) death

(2) resignation

(3) age

(4) if the office is for a fixed or temporary term, when that term comes to an end

(5) appointment to another ecclesiastical office

(6) removal

(1) is determined by natural law, of course. (2) to (6) are regulated by ecclesiastical law. (2) and (5) are voluntary, (3), (4) and (6) are compulsory.

Departure from office should be distinguished from redundancy, which occurs when the office itself ceases to exist, because it has been abolished or ‘dissolved’. No vacancy can therefore arise.

Different rules apply to different categories of officeholder

(1) Archbishops and bishops

(2) other clergy

(3) lay ministers

(4) ecclesiastical judges and legal officers

(5) parochial officers, i.e churchwardens and lay members of the parochial church council (‘the PCC’).

Among clergy (2), ecclesiastical law formerly made a sharp distinction between

(1) holding an office per se and

(2) a mere licence to officiate

A clergyman either held an office, or he held a licence. He resigned, or was removed from, office. Or he resigned his licence, or the licence was revoked.

The distinction has not disappeared. However, following the Clergy Discipline Measure 2003 and the Terms of Service Measure 2009, clerical office and licence are subject to a similar regime.

All lay ministers (3) are licensees. Categories (4) and (5) are officeholders per se.

Resignation

Most ecclesiastical officeholders resign to their bishop, because he is their constitutional (‘canonical’) superior. Phillimore relates that the validity of the mediaeval Pope Celestine V’s resignation was doubted, because the Pope has no earthly superior (Ecclesiastical Law, 2nd edition 1895, p.385). Modern Roman Catholic law has now resolved this doubt (Code of Canon Law 1983, canon 332(2)).

The Terms of Service Measure 2009 simplified the resignation procedure. A deed is not required. Nor does the resignation have to be formally accepted. Diocesan officeholders on common tenure resign by giving at least 3 months’ notice, in writing, to the bishop (s.3). So the resignation becomes effective when the notice period expires. The bishop may agree to waive notice. Notice of resignation can be in electronic form (Terms of Service Regulations 2009, 17(1)).

However, the older formalities still apply to Archbishops and bishops, notwithstanding their common tenure with less senior officeholders. Bishops, including suffragans, resign to the Archbishop. This requires ‘a written instrument in the prescribed form’, though not a deed. The resignation must be accepted by the Archbishop. The Archbishop signifies acceptance by endorsing the resignation instrument with a declaration of vacancy of the bishopric from a specified date (Bishops (Retirement) Measure 1986, s.1).

The Archbishop resigns to the Monarch. If the Monarch accepts the resignation, the vacancy is declared by Order-in-Council.

The diocesan chancellor resigns to the bishop, as does the registrar (Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.3(2) and s.32). However, the deputy chancellor resigns to the chancellor, not to the bishop (s.4(8)).

The Dean of the Arches and Auditor resigns to both Archbishops (2018 Measure, s.11). (He is the senior judge of both Provinces, of course.) The registrar of disciplinary tribunals resigns to the Archbishop, with a notice period of at least 12 months, though the Archbishop may allow an earlier date (2003 Measure, s.5(4)).

Churchwardens, being officers of the ordinary, resign to the bishop ‘by post’ (Churchwardens Measure 2001, s.7), so presumably an email will not be effective. Resignation takes effect after 2 months, or on an earlier date determined by the bishop.

However, PCC members do not resign to the bishop (he is not their superior), but to the secretary of the PCC (Church Representation Rules, 67).

The same person may hold more than 1 ecclesiastical office. The general rule is that departure from 1 office means departure from them all. However, the bishop may permit the incumbent of a plurality to resign 1 benefice but not the other (or others) (Mission and Pastoral Measure 2011, s.32(4)).

Age

The Ecclesiastical Offices (Age Limit) Measure 1975 provides that a clerical officeholder ‘shall vacate … office on the day on which he attains the age of 70 years’ (s.1(3)). Thus the retiring officeholder does not resign, which is a matter of words, but vacates – i.e physically withdraws from the functions and facilities of the office.

At least 6 months before a bishop turns 70, the Archbishop must proactively declare the bishopric vacant with effect from the bishop’s birthday (Bishops (Retirement) Measure 1986, s.2).

However, the Archbishop himself is trusted to retire by the due date, with no proactive action by the Monarch. Thus the Archbishop submits his resignation to the Monarch at least 6 months in advance of his birthday.

Diocesan chancellors must normally retire at 70 (2018 Measure, s.3), though they do not finally depart until they have concluded all the cases then before them (s.3(4)). The Dean of the Arches may stay until 75 (s.11). The House of Bishops is empowered to impose a lower retirement age on registrars, i.e lower than 70 (s.32).

Compulsory retirement at 70 is not an absolute rule. The appropriate superior may authorise continuance in office for a fixed or limited period: Terms of Service Regulations 29A for offices held on common tenure, the 1975 Measure for other offices. (The former Dean of Canterbury recently retired at the age of 75.) The continuance of an incumbent or priest-in-charge will require the consent of the PCC. Subject to this, they can carry on even beyond 75.

If the bishop is to continue, this will be recorded in the declaration of vacancy, i.e the declaration will record the later date, rather than the bishop’s 70th (1986 Measure, s.2).

Likewise the bishop may extend the chancellor’s tenure by up to a year at a time, subject to an absolute retirement age of 75.

The age of retirement does not apply to the Royal Peculiars, the Dean of Christ Church, Oxford, or to a residentiary canonry that is annexed to a professorship.

Fixed Term or Temporary Office

Before common tenure was introduced, many clergy held office for a fixed term of years. Fixed term was the rule for team vicars, and was also possible for team rectors, and even cathedral canons (Pastoral Measure 1983, s.20, Cathedrals Measure 1999, s.9(1)(b)). A lay member of a team ministry who is not on common tenure may still be subject to a fixed term (canons E6(1A) and E8(2A)).

Under common tenure, however, an office is usually time-limited only if it is temporary in nature, e.g to supply for the absence of a permanent officeholder, a training or probationary post, or a post subject to sponsorship funding (regulation 29). A temporary or fixed term office must be clearly identified as such to the officeholder (cf regulation 3(5)(j)).

(Roman Catholic law provides that ‘Loss of office by reason of expiry of a predetermined time … has effect only from the moment that this is communicated in writing by the competent authority’ (1983 Code, canon 186). In other words, even a fixed term appointment must still be terminated on notice. There seems to be no equivalent provision in ecclesiastical law, but perhaps one is not necessary.)

A licensed office which is linked to the holder’s employment may be terminated if the employment contract is terminated (2009 Measure, s.3(5)).

The Cathedrals Measure 2021 suggests that non-executive lay canons (as distinct from residentiary clerical canons) may be subject to fixed-term tenure (s.5(1)), though this will be determined by the constitution of the particular cathedral. (Lay canons are not subject to common tenure.)

A deputy chancellor’s tenure is tied to that of the chancellor. If the chancellor leaves office, the deputy continues to officiate, but only for 3 months (2018 Measure, s.4). The new chancellor can then decide whether or not to reappoint him.

The Deputy Dean of the Arches is temporary, but an appointment may be renewed (s.12).

Parochial offices are held for fixed terms, of course – 1 year for churchwardens, usually 3 years for PCC members, though the annual parochial meeting can decide to limit it to 1 year (Church Representation Rules, M16(2)).

Parochial offices are not subject to an age of retirement, but time limits can be imposed to their tenure. A churchwarden cannot serve more than 6 successive terms in the same parish, but can be re-elected after a year’s furlough (2001 Measure, s.3). The annual parochial meeting can impose a maximum continuous period in office for PCC members (M16(2)).

If a churchwarden retires or is not re-elected his term of office ends either

(1) when his successor is admitted to the office or

(2) 31st July

whichever is earlier (2001 Measure, s.6(2)).

PCC members are not admitted to office, so a PCC member’s term (if not re-elected) will end at the conclusion of the annual meeting (Church Representation Rules, M16(1)).

As mentioned, there is a difference between the vacation of an office and its abolition or dissolution. The Terms of Service Measure provides that an officeholder may be made redundant ‘where the office ceases to exist in consequence of a [statutory] scheme or order’ (s.3(3)).

However, the Mission and Pastoral Measure 2011, which now regulates pastoral reorganisation within the diocese, apparently permits the removal of an incumbent even when the benefice does not cease to exist.

Thus s.39(2) provides that ‘If … the benefice concerned is not vacant [but] the existing incumbent is not to hold the benefice by virtue of a designation [of a new incumbent] by the scheme … the benefice shall be deemed to be vacated …’, i.e the undesignated incumbent will have to go.

However, s.39(3) then goes on to provide that ‘the effect of vacating a benefice … is not to come into operation until … at least 6 months after … the scheme is made …’.

This wording suggests that a statutory scheme may reduce an officeholder’s tenure from an indefinite period to a temporary one, notwithstanding the protection conferred by the 2009 Measure.

Appointment to another Office – the Rule against Pluralities

Statutory authority is generally required for a person to hold 2 or more ecclesiastical offices in plurality.

S.104 of the 2011 Measure provides that, absent statutory authority, an officeholder

‘on … admission to the [new office] be deemed to vacate the office or offices previously held by him’.

(Pluralism, the unscrupulous accumulation of offices merely to acquire the property and income therefrom, was a grave abuse in the Church for many centuries.)

Halsbury’s Laws offers some clarification of the word ‘admission’ in this context

‘Strictly speaking, admission is merely the bishop’s declaration that he approves the presentee as a fit person … [but] The word is more commonly used to signify generally the actual committal of the cure to the clerk …’ (vol 34, para 628, n1).

In other words, the previous office is not vacated until legal title to the new office is conferred, whether by institution or the grant of a licence. The office is not vacated when the candidate is merely nominated to the new office.

S.104 suggests that an officeholder who is promoted is not required to resign his current office, since vacation is automatic.

The Patronage (Benefices) Measure 1986 permits incumbents to exchange their benefices. Halsbury’s Laws suggests that ‘exchange only takes effect if and when both incumbents are instituted and inducted to the [new] benefices’ (para 725). If this does not happen, the exchange agreement is void and both incumbents continue in their original benefices. Either way, no vacancy is created.

The rule of automatic vacation does not apply to ecclesiastical judges, but the 2018 Measure empowers the House of Bishops to limit the number of judicial offices that may be held by 1 person at the same time (s.5(1)).

Removal

Different removal procedures apply to different categories of officeholder. It must be remembered that

(1) all clerical officeholders are subject to the Clergy Discipline Measure 2003, but

(2) not all clerical officeholders, as yet, have to be on common tenure

(3) no lay ministers are subject to the 2003 Measure and

(4) some lay ministers are on common tenure, while others are not.

Clergy All clerical officeholders, whether on common tenure or not, are liable to removal for

(1) misconduct or

(2) incapability

Misconduct

If the disciplinary tribunal makes a finding of misconduct under the 2003 Measure, it may, subject to appeal, remove the convicted clergyman from office (or revoke his licence) (s.19(1). The bishop does not have this power. Likewise, a convicted bishop or Archbishop may be removed by the Vicar General’s Court, though this must be confirmed by Order-in-Council (s.24(2)).

The bishop may remove a clergyman who is convicted of a serious criminal offence, or who is the subject of an unfavourable finding by a divorce court, or named on a ‘barred list’ (s.30). The disciplinary tribunal is not involved in this – it is based on the findings of secular authorities. The bishop’s penalty is subject to review (not appeal) by the Archbishop.

Removal in these circumstances is unusually formal. The about-to-be-removed officeholder ‘shall be entitled to be present when the penalty is imposed’ (though this may be difficult to arrange if he is in prison). The bishop ‘shall be attended by the registrar’. This formality makes the point that the bishop is acting in a quasi-judicial capacity.

The removal of a bishop or Archbishop following the finding of a secular authority requires consultation with the 2 most senior bishops of the Province (s.31). However, a confirmatory Order-in-Council is not required.

It remains theoretically possible for a bishop or other clerical officeholder to be removed (or ‘deprived’) by the Court of Ecclesiastical Causes Reserved for an offence against doctrine, ritual or ceremonial, under the Ecclesiastical Jurisdiction Measure 1962, s.45 and s.49, though none has been in nearly 60 years.

Incapability

If the capability procedure to which common tenure is subject culminates in a final determination that the officeholder be removed, then the bishop or Archbishop must – not may – give 3 months’ notice of removal, stating the reason (2009 Measure, s.3(6)).

If an incapable bishop is removed, the Archbishop must also declare the bishopric vacant (s.3(8)).

If the Archbishop himself is found incapable, the other Archbishop gives notice, not the Monarch. However, the other Archbishop must then petition for an Order-in-Council to declare the Archbishopric vacant (s.3(7)).

Any incumbents and cathedral dignitaries who are not on common tenure remain subject to the capability procedures provided by the Incumbents (Vacation of Benefices) Measure 1977 and the Church Dignitaries (Retirement) Measure 1949.

Lay Ministers If a lay minister is on common tenure, he can only be removed from office for the same reasons as clergy, i.e misconduct and incapability.

The capability procedure is the same as for clergy. However, a complaint of misconduct will be governed by the canons of the Church of England, not the 2003 Measure (or the 1963 Measure). The complaint is tried by the bishop, who also imposes the penalty, subject to an appeal to the Archbishop. The disciplinary tribunal is not involved.

Nor is it only the procedure which is different. Because lay ministers are subject to the canons, and not to the 2003 Measure, the definition of ‘misconduct’ in s.8 of the 2003 Measure does not automatically apply to them. (Thus there are important limits to the commonality of common tenure!) And the canons make clear that misconduct ‘includ[es] any act or omission relating to matters involving ritual, doctrine or ceremonial’.

If a lay minister is not on common tenure, the bishop can revoke the licence ‘for any cause which appears to him to be good‘, not just for misconduct or incapability, ‘after having given the [lay minister] sufficient opportunity of showing reason to the contrary’. Again, there is an appeal to the Archbishop (canons E6(3) and E8(5)).

The canons provide that a lay minister must have his licence revoked if his name appears on a barred list. The licence may also be revoked for a criminal offence against a child, but the bishop is empowered to waive such a conviction, giving reasons therefor.

Other criminal and matrimonial offences are not specifically referred to in the canons, but they may still constitute misconduct by a lay minister on common tenure, and ‘good cause’ to remove a lay minister who is not.

Judges and Legal Officers The bishop may remove the chancellor if the bishops of the Province collectively resolve that the chancellor is ‘incapable or unfit’ (2018 Measure, s.3(3)). The 2 Archbishops may likewise remove an incapable or unfit Dean of the Arches, upon resolutions by the bishops of both Provinces (s.11). The chancellor may remove his deputy, after consultation with the bishop (s.4).

The bishop may dismiss the registrar, with the consent of the Archbishop (or of the other Archbishop, in the case of a provincial registrar), even if the registrar is not considered incapable or unfit (s.32). The Archbishop may terminate the appointment of the registrar of tribunals, subject to consultation with the President of Tribunals (2003 Measure, s.5(5)).

Parochial Officers The bishop had a very limited power to disqualify churchwardens and PCC members under the Vacation of Benefices Measure 1977, if advised that they contributed to a ‘breakdown in pastoral relations’ (s.10(6)). However, this power was only very rarely used, and the 1977 Measure does not apply to incumbents on common tenure.

Churchwardens and lay PCC members cannot otherwise be removed from office by the bishop or Church court. Their mandate to officiate comes from the parishioners who elected them. (It is true that churchwardens are admitted to office by the ordinary, but this is a formality.) Their terms of office are of relatively brief duration. If found unworthy or incapable, the obvious sanction is to vote them out at the next election.

The basis of eligibility for parochial office is the electoral roll. A churchwarden or lay PCC member is automatically disqualified (therefore effectively removed from office) if his name is removed from the electoral roll, or fails to appear on a new roll (2001 Measure, s.8(1), Church Representation Rules, M15(11)).

Churchwardens and lay PCC members will also be disqualified if they are included in a barred list, or convicted of an offence against a child (rule 46). Again, the bishop has power to waive disqualification for such a conviction.

Because churchwardens and PCC members are ex officio charity trustees, they will be automatically disqualified from office if disqualified by secular authority from officiating as charity trustees (2001 Measure, s.2, cf rule M8(8)). However, disqualification is apparently not automatic for a cathedral officeholder who is ex officio a charity trustee. The bishop must disqualify such an officeholder (2009 Measure, s.3A).

A Metropolitical Visitation of Monmouth

Church in Wales Report, The Monmouth Enquiry and Review (2021)

The Report relates that various ‘disclosures’ and ‘concerns’ were raised a few years ago about the then Bishop of Monmouth. It is not altogether clear what the Bishop was supposed to have done amiss, as the report is heavily redacted. His alleged conduct was much discussed and investigated, but no disciplinary proceedings were taken against him. He later retired on health grounds, to the regret of many in his diocese.

For some 800 years, the Church in Wales was part of the Province of Canterbury in the Church of England. Then in 1920, following a highly controversial Disestablishment, it was reconstituted as an independent, self-governing province of the Anglican Communion, with its own Archbishop.

The conservative, High Church character of the Constitution of the Church in Wales has been discussed elsewhere in this blog. The Constitution provides that

‘The ecclesiastical law as existing in England on 30th March 1920, with the exception of [certain 19th century statutes], shall be binding on the members … of the Church in Wales, and shall be applied to the determination of any question or dispute between them … insofar as it does not conflict with anything contained in the Constitution …’ (1(5)).

It also affirms ‘the powers and functions inherent in the office of Metropolitan [i.e Archbishop] … [and] in the Episcopal Office’ (2(37)).

The notion that Archbishops and bishops possess ‘inherent’ powers may owe more to Tractarian theology and romantic mediaevalism than to ecclesiastical law. However, it is argued that such powers are correctly understood as common law powers, or powers inherited from English law at Disestablishment. This interpretation is consistent with the Constitution’s earlier reference to ecclesiastical law.

In the case of Bishop of St. David’s (1699) 91 English Reports 126 – another Welsh case – English law affirmed that ‘By the common law, the Archbishop has a metropolitical jurisdiction … Archbishops are over bishops, as well as bishops are over the other clergy (p.127) … The Archbishop hath a provincial power over all bishops of his province …’ (p.711).

These authorities make clear that concerns about a diocesan bishop are a matter for the Archbishop, not any other ecclesiastical institution or officeholder, whether inside or outside the bishop’s diocese. Disciplinary proceedings against a bishop are now determined by a Disciplinary Tribunal, not by the Archbishop (9(9)). However, as mentioned, no such proceedings were commenced in this case, so the Tribunal and the Church courts were not involved.

The Archbishop’s metropolitical jurisdiction, like other ecclesiastical institutions, is exercised by a procedure known as visitation. Those subject to jurisdiction are said to be ‘visitable’. In the old days, a visitation resembled a judicial circuit. Modern communications now make it possible to exercise jurisdiction without going on a special trip. A visitation is essentially an inquiry.

The Constitution, conservative as always, provides that ‘Archiepiscopal visitations shall be held as heretofore, and the law and practice thereto shall be that prevailing on 30th March 1920’ (9(43)).

A metropolitical visitation / inquiry is exceptional. Visitations are normally carried out by archdeacons, not Archbishops. The Constitution provides that ‘Archdeacons shall conduct regular visitations of all parishes in their archdeaconries’ (9(43)). The bishop may decide to hold a visitation of his own. But archdeacons have no jurisdiction to visit the bishop, who is their superior. And of course the bishop cannot visit himself.

Hence the need of a metropolitical visitation. The revised canons of the Church of England suggest that the purpose of the Archbishop’s jurisdiction is ‘to correct and supply the defects of other bishops’ (C22(5)), i.e to intervene only when things are going badly wrong.

Although the jurisdiction is his alone, the Archbishop is free to consult others about its exercise. He may also delegate the jurisdiction to others. Persons exercising delegated ecclesiastical authority are traditionally known as ‘commissaries’ or ‘surrogates’.

Canon 128 of 1603 makes provision for ‘The Quality of Surrogates’, but this does not apply to those appointed by Archbishops and bishops, only to inferior delegated authority. The revised canons contain no equivalent of canon 128. So the Archbishop would seem to have an unfettered discretion in his choice of commissaries / surrogates, just as he is unfettered in his choice of consultees.

The Church in Wales report asks whether the Archbishop has a ‘free-standing’ power to suspend a bishop (pp.73-74). It noted that the Constitution empowers a bishop to suspend an officeholder in his diocese (9(39)), but confers no equivalent power on the Archbishop to suspend a bishop (though no power of suspension was actually required in this case, as the Bishop of Monmouth voluntarily recused himself from all official duties).

One of the Bishop’s supportive colleagues argued that the Archbishop did indeed have power to suspend him, under the ‘inherent powers’ provision cited above. Professor Norman Doe was more cautious: ‘it would require a very thorough search of the pre-1920 English ecclesiastical law … to determine whether an archbishop / metropolitan has any power … to suspend a diocesan bishop’.

However, modern ecclesiastical lawyers are fortunate that the late Sir Robert Phillimore did most of the searching for them. Phillimore relates that ‘In the bishop’s [visitation], as also in regal and metropolitical visitations, all inferior jurisdictions … are inhibited from exercising such jurisdiction, during such visitation’ (Ecclesiastical Law, 2nd edition 1895, p.1050).

This suggests that there is no discrete or ‘free-standing’ power to suspend a bishop, because none is needed. On the contrary, the very institution of the Archbishop’s visitation / inquiry automatically suspends the bishop’s exercise of his official functions. Visitation per se effects suspension.

Phillimore’s dictum refers to inhibition rather than suspension, but it is hard to see any material distinction between the two. They have the same practical effect, separation from official function. Indeed the revised canons do not seem to recognise any distinction, providing that ‘During the time of … visitation the jurisdiction of all inferior ordinaries shall be suspended …’ (G5(2)).

There is the apparent difficulty that automatic inhibition is not limited to the bishop, but applies equally to the archdeacons (because they exercise ‘inferior’ jurisdictions) and possibly to other diocesan officeholders as well, even though the visitation / inquiry is concerned only with the Bishop’s conduct.

However, Phillimore makes clear that the automatic inhibition is flexible. It can be appropriately limited or tailored to the scope of the visitation. Thus the visiting Archbishop may grant ‘relaxations … pending the visitation … an unlimited leave or commission to exercise jurisdiction … notwithstanding the visitation’. So the archdeacons could still get on with their work, and diocesan administration continue, with the bishop alone being inhibited. The Archbishop could even limit the inhibition of the bishop himself, by permitting him to continue with some of his functions but not others, or by attaching conditions to his performance of official functions.

Praying for the Dead

‘I whiles wish I was a Catholic and could pit up prayers for the sodgers that are dead.  It maun be a great consolation.’ (fictional Protestant lady in Mr Standfast (1919), by John Buchan)

It is easy to forget now that praying for the dead was once a controversial practice.

In 1904, shortly after his elevation to St. Augustine’s Chair, Archbishop Randall Davidson was embarrassed by an allegation that he had ‘said prayers for the dead with the late Queen’, i.e Queen Victoria (presumably prayers for her beloved Albert).  He had formerly been Dean of Windsor, in effect the Queen’s local vicar.  His official biography records that ‘The [allegation] was widely reproduced, and the Archbishop received letters from newspaper editors and protest from Protestant organisations’ (G.K.A Bell Randall Davidson (1935), pp.440-1).

He did not deny the prayers, but complained of ‘how little appreciation that there is of the distinction … in the Church of England between

[1] the use of such prayers [for the dead] in the private devotion of a worshipper … and

[2] the insertion of such prayers in the public services of the Church’.

[2] was forbidden, but [1] was permitted.  (The implication is that the Archbishop – and the Queen – had only engaged in [1], not [2], and were therefore innocent of any ecclesiastical irregularity.)

This may suggest that private prayer for the dead is rather like private confession, a permitted concession to human weakness, for those who cannot otherwise find the assurance of God’s mercy and forgiveness.

Prayer may be private, but the churches and burial grounds in which the dead are buried and commemorated are public places.  In the case of Breeks v Woolfrey (1838) 163 English Reports 304, the Rev Mr Breeks prosecuted Mrs Woolfrey, one of his parishioners, in the Court of the Arches, ‘touching and concerning her soul’s health, and for the lawful correction of her manners and excesses’ (p.307).  Mrs Woolfrey was a Roman Catholic.  She had inscribed her husband’s tombstone with the words ‘Pray for the soul of …’.  Mr Breeks argued that this was unlawful.

Article 22 condemns ‘The Romish doctrine concerning Purgatory … grounded upon no warranty of Scripture, but rather repugnant to the Word of God’.  The Dean of the Arches, Jenner, acknowledged that ‘by this law I am bound to govern myself’ (p.308).

(He might have added that Article 31 also condemns ‘the sacrifices of Masses, in the which it was commonly said that the priest did offer Christ for the quick and the dead, [are] blasphemous fables and dangerous deceits’.  The Mass, or Eucharist, is a prayer as well as a sacrifice.)

Moreover, one of the homilies commended by Article 35 for their ‘godly and wholesome doctrine’ deprecates the practice of prayer for the dead: ‘neither let us dream … that the souls of the dead are holpen by our prayers’.

That was not the end of the matter, however.  The Dean reviewed ‘Authorities [i.e commentaries] … numerous in the point … that prayers for the dead are not necessarily connected with the doctrine of Purgatory, since they were offered up by the Primitive Church long antecedent to the [mediaeval] doctrine of Purgatory’ (p.309).

Thus prayer for the dead does not necessarily imply the existence of Purgatory, but may be offered ‘that souls might have rest and quiet in the interval between death and resurrection’.

Mrs Woolfrey was a Catholic, and so presumably adhered to Catholic teaching.  Surely this meant, Mr Breeks suggested, that her inscription did necessarily imply the existence of Purgatory? (The word ‘necessarily’ occurs frequently in the judgment.)

This suggestion was rejected on a legal technicality: ‘if anything arose from the circumstance of [Mrs Woolfrey] being Roman Catholic, or from the sense in which the words of the inscription are understood by the Romish Church, it should have been specifically pleaded‘, which it had not been (p.312).

The Dean concluded that the historic formularies ‘shew that the Church discouraged prayers for the dead, but did not prohibit them: and that the 22nd Article is not violated by the[ir] use’ (p.311).  Nor did the withering reference in the approved homily amount to a prohibition.  The homily does not say that praying for the dead is unlawful, merely that it is useless.  ‘If it had been the opinion of the [reformers] that prayers for the dead were opposed to the Scriptures, they would have expressly declared their illegality’ (p.312).  The vindictive vicar was sent away with his case dismissed, and an order to pay Mrs Woolfrey’s costs.

The Dean accepted that all public prayers for the dead had been removed from the liturgy (from 1552 onwards), but suggested that ‘The probable reason for the omission … [was] that they might be abused … to the support of the Roman Catholic doctrine of Purgatory’ (p.311).

Breeks v Woolfrey was decided during the Tractarian era, a time when the Church of England was encouraged to remember its ‘catholic’ identity and descent from the Early Church.  The judgment is undeniably attractive.  Ecumenical generosity and patristic scholarship prevail over fundamentalism and prejudice.

The judgment places a Tractarian gloss on the historic formularies.  It may be doubted whether the formularies draw a clear distinction between prayer for the dead and relief from Purgatory, or that they exclude the former because of a perceived danger that they will be mistaken for the latter.  It is far more likely that such prayer was excluded for the reasons given by the formularies themselves, i.e that it is unscriptural and unhelpful to the dead.

Private prayer is not forbidden, but an inscription in a church or churchyard is arguably public, not private.  Mrs Woolfrey was not prosecuted for praying for her husband’s soul.  Of course she was free to do this.  She was prosecuted for inviting, or inciting, other people to do so, by means of an inscription placed in the parish churchyard.  It could be argued that the Court of the Arches failed to appreciate the distinction between permitted private prayer and public advertisement.

The suggested dichotomy between mediaeval doctrine and primitive practice is problematic.  This issue would be addressed not long after Breeks v Woolfrey by St John Henry Newman (a leading Tractarian of course) in his Essay on the Development of Christian Doctrine (1845).  The modern Roman Catholic Catechism (1994-2000) explains that ‘after death [souls] undergo purification, so as to achieve the holiness necessary to enter the joy of Heaven … The Church gives the name Purgatory to this …’ (paras 1030-1).  Breeks v Woolfrey suggests that we may pray for the rest of departed souls, but not for their purification.  But ‘rest’ from what, exactly? If souls are not in need of purification, why do they need praying for?  The fundamentalism of the formularies seems more logical on this point.

Phillimore relates that the Latin Prayer Book of Queen Elizabeth I (not the English one) included prayers for the dead, and that ‘prayers for the dead are used on special occasions in the chapels of some [Oxford] colleges’ (Ecclesiastical Law, 2nd ed 1895, p.696).  (The rationale for this may be that those involved are sufficiently select for the prayers to be considered private, and / or are sufficiently intelligent not to be deceived by the error of Purgatory!)

In the decades that followed Breeks v Woolfrey, municipal cemeteries were opened as traditional churchyards became overcrowded and insanitary.  The Acts of Parliament which authorised these new burial grounds were careful to assert the ecclesiastical authority’s ‘right and power to object to the placing, and to procure the removal of any monumental inscription’ in consecrated ground: Cemeteries Clauses Act 1847, s.51.  Also, ‘the fitness of any monumental inscription … shall be determined by the bishop’: Burial Act 1852, s.38.  The ecclesiastical jurisdiction to veto unfit inscriptions in consecrated municipal cemeteries is preserved today in the Cemeteries Order 1977, Article 13.

The tolerance displayed in Breeks was ahead of its time.  In the late 19th and early 20th centuries, the ecclesiastical courts refused to grant faculties for inscriptions inviting prayer for the soul of a deceased person.

This does not mean that the courts ignored Breeks (they did not), or even that their decisions were inconsistent with it.  It should be remembered that Breeks was a criminal prosecution.  Criminal prosecutions must be exactly pleaded and strictly proved, which Mr Breeks had failed to do.  Faculties, by contrast, are a discretionary civil matter.  A faculty petition will not be accepted just because its subject-matter is not unlawful.  What is not unlawful is not necessarily encouraged.  The same reason for dismissing the prosecution of Mrs Woolfrey (that prayer for the dead is discouraged but not unlawful) may also justify the refusal of a faculty for an inscription inviting such prayer.

Egerton -v All of Odd Rode (1894) Probate 15 concerned an inscription ‘Pray for the soul of …’ on a church window.  A faculty was refused because

‘it does not … belong to a [Church] court … to do what the formularies of the Church have abstained from doing … to authorise directly the setting up in a place of worship of an inscription demanding … prayers … for [departed] souls’ (p.21).

A powerful point.  The faculty jurisdiction should be exercised consistently with the liturgy, and with the principle of uniformity on which the liturgy was then based.

The judgment in Pearson v Stead (1903) Probate 66 is rather less persuasive.  The Chancellor, Dr Tristram (the last survivor of Doctors Commons), addressed the unpleaded issue raised in Breeks v Woolfrey.  The petitioner for the inscription, like Mrs Woolfrey, was a Roman Catholic.  Was this relevant?  The Worshipful Doctor suggested that it was:

‘The court … should be satisfied … beyond all doubt … that the inscription was so expressed and intended to be expressed as not to include or appear to include an invitation for prayers for the relief of [departed] souls … from the pains of Purgatory …’ (p.73).

On this view, it is not just the wording of an inscription that matters, but the intention of the petitioner.  A Roman Catholic petitioner would naturally intend an inscription to invite prayers for relief from Purgatory.  This intention would in turn give the inscription an appearance of inviting such prayers, even if the inscription did not explicitly refer to Purgatory.  A faculty should therefore be refused.

This ratio decidendi suggests that exactly the same inscription may be permitted if its author is an Anglican (who, as such, is merely inviting prayers for the ‘rest’ of departed souls) but must be refused if he is a Catholic.

In Dupuis v Parishioners of Ogbourne St George (1941) Probate 119, the Chancellor refused a faculty because he thought that many Anglicans would associate such an inscription with Purgatory, even if this was not intended, and would consequently be distressed and offended by it.  The Court of the Arches held that this was a matter for the Chancellor’s discretion and declined to overrule him.

Then, in South Creake (1959) 1 All England Reports 197, Chancellor Ellison granted a faculty for an inscription on a window in the parish church.  The faculty was sought by the vicar himself (for his late mother), and the parish had ‘a strong Anglo-Catholic tradition’ (p.198).

The Chancellor strongly emphasised the findings in Breeks v Woolfrey that

(1) the Early Church offered prayers for the dead and

(2) such prayers were not unlawful in the Church of England.

He pointed out, correctly, that he was not bound by the earlier faculty decisions, which were taken by chancellors from other dioceses.  He suggested unconvincingly that the Egerton decision ‘goes further than Breeks v Woolfrey requires’, but this ignores the different character of the 2 cases, as discussed earlier (criminal prosecution cf judicial discretion).

The decisive factor in favour of the inscription was the change of attitude over the years: ‘the average churchman today approaches the subject-matter under consideration with much less intensity than did his forebears’ (p.206).  Nor was it merely the average churchman whose attitude had changed.  The Revised Prayer Book of 1928, approved by large majorities in the Convocations, includes a prayer for the dead.  The Lambeth Conference of 1958 (which met while the Chancellor was considering the case) had reported favourably on the practice (pp.207-8).  Thus prayer for the dead was now officially encouraged, rather than discouraged.

It may be objected that, though attitudes had undoubtedly changed, the law had not.  The 1662 regime of public worship still lingered on in the 1950s.  The 1928 Book, though indeed approved by the Convocations, had been rejected by Parliament, so had no statutory authority.  The deliberations of the Lambeth Conference (or Conferences) are nothing more than expressions of opinion.

However, it had long been recognised that the 1662 regime was unenforceable and not fit for purpose.  Eventually the law was changed by the Worship and Doctrine Measure 1974.  The modern liturgy now includes prayers for the dead, with the full statutory authority of the 1974 Measure.

This addresses the point raised in Egerton.  If the official liturgy includes prayers for the dead, then inscriptions inviting such prayers are prima facie permissible, though there may still be discretionary reasons for refusing an inscription in a particular case.

The modern prayers may have been inspired by Tractarian researches into the Early Church, but, as the above quotation suggests, the grim experience of modern warfare was probably instrumental in changing attitudes towards them.  (Mr Standfast is set during the first World War.)

Praying for departed loved ones is indeed ‘a great consolation’.  It satisfies an obvious human need.  It may discourage dabbling in spiritualism (seances, mediums etc).  Contrary to the alleged fears of the Reformers, it has not led to a revival of support for the doctrine of Purgatory.  However, the metaphysical effect of such prayers, i.e how the dead are ‘holpen’ by them, is unclear.

Wise Virgins: The Cardiff Convention 1917

Controversy

It is easy to forget – and its present leaders may prefer to forget – that the Church in Wales was strongly opposed to its own Disestablishment.  Disestablishment gave rise to ‘more bitterness and acrimony than any political controversy in which the Welsh nation has ever been engaged’ (House of Commons Official Record 1945, vol 409, column 527).  Devolution and Brexit were amicable by comparison.

The Disestablishment controversy was fought on party political lines.  The Liberal Party’s electoral support came from the nonconformist chapels, which resented the perceived wealth and privilege of the Established Church.  In Wales, the Church was widely regarded as an alien, English institution, with only a small number of adherents.

However, the Church was still ‘the Tory Party at prayer’.  For many years, the large Tory majority in the House of Lords frustrated Liberal attempts at Disestablishment.  The Welsh Church Act 1914 was only enacted at the 4th attempt, and only after the Parliament Act 1911 had made it impossible for the House of Lords ultimately to prevent the enactment of legislation approved by the House of Commons.

Disestablishment per se might not have been so controversial.  However, the 1914 Act also provided for a substantial disendowment of the Church in Wales.  Most of its glebe and tithe property, on which its clergy depended for their income, was secularised, transferred to the Welsh local authorities and to the University of Wales (s.8(1)(c)-(e)).

S.13 of the Welsh Church Act contains 2 provisions for the post-Disestablishment governance of the Church in Wales:

‘(1) Nothing in any Act, law or custom shall prevent the bishops, clergy and laity of the Church in Wales from holding synods or electing representatives thereto, or from framing … constitutions and regulations for the general management and good government of the Church in Wales and the property and affairs thereof …

(2) If … it is shown to the satisfaction of His Majesty the King that the said bishops, clergy and laity have appointed … persons to represent them and hold property for any of their uses and purposes, His Majesty in Council may by Charter incorporate such persons … as the representative body.’

S.38(1) clarifies that ‘The expression synod [in s.13(1)] includes any assembly or convention’.

These 2 provisions are different in character.  S.13(1) merely confirms that, having ‘cease[d] to be established by law’ (per s.1), the Church in Wales has the same freedom to govern itself as any other voluntary association.  It does not confer any status on the Church’s synods or assemblies.

S.13(2), by contrast, confers a positive power on the state (‘His Majesty in Council’) to incorporate the Representative Body.  Before exercising this power, the state had to be satisfied that the appointed persons did indeed represent the Church in Wales.

S.8 provided that the property left to the Church in Wales after Disestablishment should ultimately vest in the Representative Body.  However, s.4(1) provided that, at the date of Disestablishment, the property should first vest in the Welsh Commissioners, a state agency.  The Welsh Commissioners would then transfer the property to the Representative Body.

(s.4(2) excepted movable chattels from this rule.  Chattels remained the property of their ecclesiastical owners, then vested automatically in the Representative Body when incorporated.)

Disestablishment, and Disendowment, were originally scheduled to occur no later than a year after the passage of the Welsh Church Act (s.1).  However, the outbreak of the First World War caused Disestablishment to be postponed for the duration of hostilities: Suspensory Act 1914, s.1.  This gave the Church in Wales more time to prepare its future constitution.

Cardiff

The 4 Welsh diocesan conferences were the primary vehicle for the Church in Wales’s forced march to self-governance.  Diocesan conferences were no novelty in 1914.  They had existed in England and Wales since the 19th century, but only on an unofficial, voluntary basis.

Each conference appointed 100 delegates to represent it, led by the bishop: one third clergy, two thirds laity (including, progressively, one lady delegate).  The 4 conferences also passed identical resolutions giving their delegates full power to act on their behalf (12).  These 400 delegates became the Cardiff Convention.  The Convention was therefore a representative assembly of the diocesan conferences, and drew its authority from the diocesan conferences.

The Convention met from 2nd to 5th October 1917, exactly 100 years ago this week.  The venue was apparently Cory Hall, which no longer exists.  There is a group photograph of the delegates which looks as if it was taken outside what is now Cardiff Crown Court.

Nobody in the Church in Wales was more trenchantly opposed to Disestablishment than its senior bishop, Alfred George Edwards, the Bishop of St. Asaph.  (He was, in today’s parlance, a ‘remainer’ or ‘remoaner’.)  By virtue of his seniority, he officiated as President of the Convention.  His opening speech graphically illustrates the Disestablishment controversy:

‘The [Welsh Church] Act proclaims that on the day the War ends it will smash our machinery and rob the safe’.

He continued defiantly:

‘Our answer is clear.  We shall do our best to prevent you [i.e the Liberal Party] doing your worst’ (Convention Official Report, p.7)

The Presiding Bishop was particularly distressed by s.4(1) of the 1914 Act.  Disendowment was bad enough.  But the prospect of the Church’s remaining property also falling into the clutches of a secular agency was dire.  His priority was therefore to ensure that a Representative Body was constituted and incorporated, ready to take over the Church’s property at Disestablishment.

His memoirs contain this poignant entry: ‘to constitute a Representative Body … in January 1915 … I was summoned to London to an all-important committee meeting, and I struggled painfully through it, for on that morning the news had reached me that my youngest son had been killed in action’ (Memories, London, 1927, p.270).

The Cardiff Convention created 2 new institutions for the Church in Wales:

(2) a Representative Body to secure the Church’s property and

(1) a Governing Body to provide for the Church’s governance after Disestablishment.

The Cardiff Convention constituted the Representative Body, but the Representative Body’s authority would come from its Royal Charter, when granted according to s.13(2).  By contrast, the Governing Body’s authority came from the diocesan conferences, via the Cardiff Convention.  The diocesan conferences’ authority came from the freedom conferred by s.13(1).

The constitution of the Governing Body was the embryo of the future constitution of the Church in Wales.  The Cardiff Convention constituted the Governing Body, and thereby enabled the Governing Body to provide a constitution for the entire Church.

The work of preparing the 2 constitutions was led by Mr Justice Sankey, the future Lord Chancellor Sankey, who was then Chancellor of Llandaff.  He took a more positive view of Disestablishment than the Presiding Bishop:

‘Unto us there comes the privilege which is seldom given to a generation, the opportunity of directing and shaping the course of the Church, it may be, for centuries’ (Convention Official Report, p.25).

Nevertheless he warned that ‘There will be chaos in the Church if the Governing Body is not in existence [at Disestablishment] and has not framed its constitution’ (p.18).  He counselled that ‘our watchword [should be] ‘Be ye prepared’.  Forgive me for reminding you of the parable of the wise and foolish virgins’ (p.13).

The Wise Virgins were well supplied with oil to trim their constitutional lamps.  They had a wealth of precedents to draw on.  The Church of Ireland had been disestablished in 1870.  (The Irish Church Act 1869 provided the precedent for the Welsh Church Act.)  In the 19th century, a number of overseas Anglican missions (South Africa, Canada, Australia and New Zealand) had involuntarily separated from the Home Church, when their colonies became self-governing.  When the colonies became independent and self-governing, their Churches were obliged to follow suit.  There is a detailed history of this Victorian colonial constitution-making in Phillimore’s Ecclesiastical Law (2nd ed 1895), at pp.1769-82.

Sankey related that he and his colleagues ‘consulted every constitution of every disestablished Church … circulated questions … to the most celebrated divines and historians’ (p.11).  His method was cautious: ‘We shall only do what is absolutely urgent and what is absolutely essential’.

The draft constitutions reflected this caution:

‘no originality is claim for these schemes.  We are not running after any new thing.  With few exceptions to meet the particular facts of our own case, every paragraph in both of these schemes [for the Governing Body and the Representative Body] is taken from some [existing] constitution which has been tried in the balance and is found not to be wanting’ (p.13).

The Governing Body and the Representative Body are easily confused.  It may be wondered why two separate ‘Bodies’ were considered necessary.  S.13 does not require this.  Perhaps the Representative Body could have served both to govern the Church and to hold and administer its property.

However, Sankey’s researches showed that every other voluntary Anglican Church had two distinct bodies, a synod and a finance committee (p.18).  He suggested that the finance committee/Representative Body should be ‘a small body with trained and expert knowledge’, whereas the synod/Governing Body handles ‘general questions of policy and the control of the many activities and organisations of the Church.  Here you want a larger body … representative … of all shades of thought and opinion’ (p.17).

He might have added that the Representative Body should be accountable for its stewardship of the Church’s property, and this required that it should be separate from, and subordinate to, the Governing Body.

The Governing Body held its first meeting on 8th January 1918, not in Wales, but in Church House, Westminster.  It proceeded to constitute diocesan and deanery conferences, parochial church councils and patronage procedures (p.18) on the basis of draft schemes prepared by Sankey and his colleagues.

The Representative Body was incorporated by Royal Charter on 24th April 1919.

Conclusion

The Disestablishment controversy had a relatively happy ending.  The carnage of the War put sectarian squabbles in perspective.  Any question of disestablishing the Church of England disappeared from the secular political agenda.  Welsh Disestablishment was irreversible, and eventually took place on 31st March 1920:  Welsh Church (Temporalities) Act 1919, s.2.  However, the Liberal-led government was by then heavily dependent on Tory support.  This assisted the Presiding Bishop to negotiate a substantial payment of public money to the Church in Wales, to mitigate the hardship of Disendowment (s.3(2)).

Sankey’s cautious approach of following precedent and ‘only do[ing] what is absolutely urgent and what is absolutely essential’ has stood the test of time, as he hoped it would.  While it has changed in matters of detail, the structure of the Constitution is still largely his work.  Its longevity compares favourably with the first Roman Catholic Code of Canon Law, which was also promulgated in 1917.  The 1917 Code was a great juristic achievement, but it was found to be unsatisfactory and out of date in practice almost immediately, and was eventually abrogated by the present Code in 1983.

There is a masterly analysis of Sankey’s work by Jeffrey Gainer, ‘John Sankey and the Constitution of the Church in Wales’ (LLM dissertation, Cardiff University, 1994).

The Easter Offering: Duty and Charity

‘[At] the Offertory, so many as are disposed, shall offer unto the poor men’s box every one according to his ability and charitable mind.

And at the offering days appointed, every man and woman shall pay to the Curate [i.e the incumbent] the due and accustomed offerings.’  (Book of Common Prayer 1549, rubric)

There seem to be 2 widely held assumptions concerning the Easter offering, that:

(1) it is the collection taken at church services on Easter Day and

(2) the proceeds are part of the incumbent’s official income, at least if the incumbent wishes to claim them.

The 1549 rubric quoted above suggests that this assumption is mistaken.  The rubric indicates a clear distinction between the Easter offering and the normal offertory collection, including the collection taken on Easter Day.  The Easter offering is separate from, and additional to, the offertory collection.

Moreover, the two payments are different in character.  The offertory collection is a voluntary charitable donation for the relief of poverty.  The Easter Offering, by contrast, is a ‘due’ payment, not a gift determined by charitable disposition.  A due is a duty (just like a duty on imported goods).  The Easter Offering is a compulsory payment, a tax payable to the incumbent.

As the rubric implies, Easter was not the only ‘offering day’ in the middle ages.  Phillimore relates that there were originally 4 offering days in all, Christmas, Easter, Whitsun-Pentecost and the feast of the dedication of the parish church (Ecclesiastical Law, 2nd edition 1895, p.1243).

However, from 1552 onwards, Easter is the only offering day referred to in the Book of Common Prayer.  The revised rubric provides that

‘yearly at Easter, every parishioner shall reckon with his parson, vicar or curate … and pay to … him all ecclesiastical duties, accustomably due …’.  The word offering no longer appears.

This revised wording, of course, makes more explicit the compulsory nature of the payment, and its difference from the voluntary donation for the poor.

Phillimore suggests that the Easter duty was a common law right of all incumbents (p.1243).  Therefore an incumbent did not have to prove his right to payment.  An Easter offering was a larger payment than the common law duty, but it was payable only if the incumbent could prove an immemorial custom in the parish for payment of the offering (i.e a custom dating from 1189, very difficult to prove).

Victorian legislation permitted individual parishes ‘to enter into a parochial agreement for the commutation of Easter offerings’ (p.1244), i.e to cancel the parish offering in return for payment of a one off lump sum to the incumbent.

Although reference to Whitsun as an offering day was removed from the Prayer Book in 1552, Pentecostals (Whitsun offerings or duties) may have continued after that time.  The Ecclesiastical Jurisdiction Measure 1963 provides that Pentecostals ‘shall cease to be exigible’ (demandable) (s.82(3)), but does not mention the Easter duty / offering.

The Easter duty / offering referred to in the Prayer Book has not been generally abolished, but it has been effectively destroyed by inflation.  The common law duty was a mere twopence a head (2d), so would now be impossible to enforce in practice.  An immemorial offering (if it can be proved) will only be worth a few pence more.  Common law and customary payments may not be adjusted for inflation (see the case of Bryant v Foot (1867) 2 Law Reports Queen’s Bench 161).

On our analysis, therefore, the incumbent’s only legal right is to the compulsory, though negligible, Easter duty.  He has no a priori common law right to keep the voluntary Easter collection for himself (any more than collections taken on other Sundays).  Even though it was removed from the rubric as long ago as 1552, the word ‘offering’, with its connotation of voluntary donation, has served to conflate the two payments artificially, encouraging a perception that they are one and the same.  However, they are clearly distinct in law.

The rubric concerning the offertory collection has changed since 1549.  It now provides that ‘the money given at the Offertory shall be disposed of to … pious and charitable uses’.  This, of course, allows a broader scope of use of the money than that available in 1549.  The money can now be applied to many uses other than the relief of poverty.  However, it is hard to argue from this that the incumbent’s personal benefit constitutes a ‘pious and charitable’ use.

The Parochial Church Councils (Powers) Measure 1956 empowers the parochial church council (‘the PCC’) ‘jointly with the minister to determine the objects to which all moneys to be given or collected in church shall be allocated’ (s.7(iv)).   If they cannot agree, the bishop decides instead (s.9(3)).

This power was originally expressed to be ‘subject to the directions contained in the Book of Common Prayer as to the disposal of money given at the offertory’.  The incumbent and PCC (and the bishop) therefore remained bound by the rubric.  They could decide how, exactly, the collection money was to be spent, but it still had to be spent on pious and charitable uses.

This restriction on the use of the collection money was removed in 1988, so the incumbent and PCC are no longer bound by the rubric at all.  However, it is arguable that, even in its amended form, the 1956 Measure does not confer an unfettered discretion on the incumbent and the PCC.  It suggests that the collection money must still be applied for the benefit of ‘objects’, i.e purposes or causes, rather than the benefit of particular people.

It has been pointed out that the rubric in the Book of Common Prayer applies only to the collection taken at Holy Communion.  The Prayer Book makes no provision for collections taken at Morning and Evening Prayer and other services.

In the case of Marson v Unmack (1923) Probate 163 the Court of the Arches suggested that ‘Collections … other than … the offertory, may lawfully be made for objects determined by agreement between the incumbent and the PCC.  Such objects may be and … ought to be announced to the congregation before collection …’ (p.169).  Again, the reference is to ‘objects’, and the Easter collection is not specifically discussed.

Apart from the wording of the 1956 Measure, it is arguably inconsistent with the incumbent’s trusteeship of the collection money for him to be able to determine that it should be paid to himself, even with the agreement of the PCC and the bishop, and even if the congregation is fully informed.  There is a clear conflict of interest.  A trustee may not profit from his trust.

If the incumbent’s claim on the voluntary Easter collection has no basis in common law it obviously requires a statutory basis.  It might therefore be appropriate to amend the 1956 Measure to provide this.

Moore’s Introduction to English Canon Law (3rd edition 1993) suggests that nowadays incumbents do not bother to claim the Easter collection, ‘since such offerings merely result in a pro tanto reduction in the [stipend] paid by the diocese’ (p.92).  Thus the stipend is simply reduced by the amount of the Easter collection money so the incumbent is no better off.

The Terms of Service Regulations 2009 confirm that an incumbent’s right to be paid the national minimum stipend is not absolute, but is subject to ‘any [other] income received by the office holder from other sources which is related to or derived from the duties of the office’ (reg 11.1).

Nevertheless the question of the Easter collection may still be relevant, even if incumbents no longer benefit personally.  A large sum of donated money is at stake.  If the incumbent makes a purported covenant or assignment of the Easter collection (to the diocese or elsewhere), this will be invalid if he is not entitled to the money in the first place.  (Nemo dat quod non habet).  Likewise, any decision on the allocation of the money, taken under the powers conferred by the 1956 Measure, may be flawed if it is influenced by the mistaken belief that the incumbent has a legal claim on it.

What did the Ornaments Rubric Mean?

‘Provided always … that such ornaments of [1] a church, and [2] the ministers thereof,

shall be retained and be in use as was [in use] in this Church of England by the authority of Parliament in [1549] until other order shall be taken by the authority of the Queen’s Majesty or of the Metropolitan of this realm [i.e the Archbishop of Canterbury] …’ (Act of Uniformity 1558)

‘the Minister, at the time of the Communion, and at all other times in his ministration, shall use ornaments in the church, as were in use by the authority of Parliament in [1549] according to the Act of Parliament [of 1558, above]’ (1558 rubric)

‘such ornaments of the church, and of the ministers thereof, at all times of their ministration, shall be retained, and be in use, as were in the Church of England, by the authority of Parliament [in 1549]’ (1662 rubric).

This question is phrased in the past tense advisedly.  The Ornaments Rubric no longer means anything to the English law of public worship.  The statutory authority that the Prayer Book rubrics once enjoyed was abolished by the Worship and Doctrine Measure 1974, except in respect of banns of marriage.  This is discussed in a separate post, filed below.

However, the Ornaments Rubric was discussed at length by the Court of the Arches and by the Privy Council in two celebrated 19th century ritual cases

(1) Liddell v Westerton (1857) and

(2) Elphinstone v Purchas, later Hebbert v Purchas (1870-1)

Liddell concerned the ornaments of the church.  A faculty was sought for the removal of various items associated with ritualism, such as cross and lights on the altar and colourful altar coverings.

Purchas concerned the ornaments of the minister.  The Rev Mr Purchas was charged with ‘wearing … whilst officiating in the communion service … a vestment called a chasuble … [and] a certain vestment called an alb, instead of a surplice’ (p.167), i.e the catholic eucharistic vestments.  Mr Elphinstone, the original prosecutor, died before the case reached the Privy Council, so Mr Hebbert had to be substituted.  (Death was not allowed to frustrate the continued pursuit of Mr Purchas, such was the gravity of the case.)

The erudite Sir Robert Phillimore, Dean of the Arches and original author of the famous commentary on ecclesiastical law, had no difficulty with the Ornaments Rubric: ‘the construction of this Rubric according to general principles of legal interpretation … appear[s] to me as plain and simple as any which is to be found in any statutory enactment’ (Phillimore’s Ecclesiastical Judgments, p.162).  He saw the irony of the Rubric being used to oppose ritualism when its original purpose was to protect the ornaments of church and minister from iconoclastic radical protestants who wished to get rid of them.

Phillimore also understood that the Rubric is expressed in mandatory, not prohibitive, terms.  It provides that the identified ornaments must be used.  It does not provide that only those ornaments may be used and no other.

Unfortunately the Privy Council interpreted the Rubric differently.  It observed in Liddell that, upon the accession of Queen Elizabeth I in 1558, ‘a great controversy arose between the more violent and the more moderate reformers as to the Church service which should be re-established’ (Six Privy Council Judgments (1872) ed W.G Brooke, p.52).  This controversy dated back to the reign of the Queen’s half-brother, the boy King Edward VI.  During his short reign, two Prayer Books (or two different versions of the same Prayer Book) were published.  The first Prayer Book, in 1549, was conservative and ‘catholic’ in character.  As the political balance of power shifted in favour of the radical reformers, the second Prayer Book, published in 1552, was more avowedly protestant.

The Elizabethan settlement of 1558 was therefore a compromise between the two parties.  Elizabethan public worship would use the forms of service in the ‘protestant’ 1552 Book, but retain the ornaments mentioned in the ‘catholic’ 1549 Book.  Protestant services with catholic ornaments.  That was the deal.

The Privy Council reasoned that ‘the word ‘ornaments’ applies, and in this Rubric [i.e the Ornaments Rubric] is confined to, those articles the use of which … is [positively] prescribed by [the 1549 Book]’ (p.52).  Ornaments not prescribed by the 1549 Book could therefore not be permitted.

Thus the apparent conclusion was that the Elizabethan compromise still bound the Church of England, and the courts, 300 years later.  If extra ornaments were permitted, this would be a breach of the compromise.  The violent reformers would be short-changed.

The Privy Council was careful to state that the phrase ‘ornaments of the church’ did not refer to all physical items within Victorian churches.  The Ornaments Rubric did not mean that all articles not expressly referred to in the 1549 Book are illegal.  The ‘ornaments’ referred to in the Rubric comprised ‘All the several articles used in the performance of the services and rites of the Church’ (p.51).  Items used to decorate the church rather than to perform liturgical actions were outside the scope of the Rubric, and so might be permitted.  Therefore ‘crosses … when used as mere emblems of the Christian faith, and not as objects of superstitious reverence … may still lawfully be erected as architectural decorations …’, even though not referred to in the 1549 Book (p.65).

So much for the ornaments of the church.  In Purchas, the Privy Council proceeded to examine the ornaments of the minister.

Prima facie the ritualists were on stronger ground here.  The 1549 Book provided that, at the holy communion, ‘commonly called the masse’, the officiating priest ‘shall put upon him … a white alb … with a [eucharistic] vestment or cope’.  Any clergy assisting him were required to wear ‘albs with tunicles’.

The Act of 1558, as quoted above, suggests that the Ornaments Rubric was intended to be a temporary provision only.  It was to apply only ‘until other order shall be taken’.  Yet the 1662 rubric, which was authorized over 100 years later, is almost exactly the same wording as the 1558 rubric.  This may suggest that no such ‘other order’ was ever taken, and that the compromise of 1558 was revived in 1662 without alteration.

This was Phillimore’s view.  Certain ‘Advertisements’ concerning public worship were published in the 1560s, but Phillimore held that ‘the Queen never gave her official or legal sanction to these’ (p.169).  The canons of 1603 make no reference to eucharistic vestments, and provide that ‘Every minister saying the public prayers, or ministering the sacraments [including holy communion] or other rites of the Church, shall wear a decent and comely surplice’ (canon 58).  At holy communion in cathedrals, likewise, the officiating clergyman was required to wear ‘a decent cope’, but again no eucharistic vestments (canon 24).

However, as Phillimore pointed out, the canons of 1603 were promulgated under the Submission of the Clergy Act 1533, a quite different statute from the 1558 Act of Uniformity.  Moreover, they did not have the sanction of the Archbishop of Canterbury, as the 1558 Act required, because the See of Canterbury was vacant at the time they were promulgated.  The Bishop of London had presided instead of the Archbishop.

Thus, while the canons of 1603 might permit clergy to officiate at holy communion in a surplice, they could not forbid clergy from wearing eucharistic vestments.  The canons of 1603 could not replace or override the 1558 Act.

Once again, the Privy Council disagreed.  It held that the Advertisements of the 1560s did have royal authority, and so did constitute ‘other order’ under the 1558 Act.  Moreover, they were enforced by royal commissioners.  The practical effect of this was ‘that within a few years after the Advertisements were issued the [eucharistic] vestments … entirely disappeared’ (p.170).  There was no attempt to revive them before 1662.  The canons of 1603 ‘ordered surplice only to be used in parish churches’ (p.176).

Although the wording of the 1662 rubric may seem almost identical to the 1558 wording, the Privy Council detected a critical difference.  The 1558 rubric contains a specific reference to holy communion.  It distinguishes between the ornaments of the minister ‘at the time of the communion, and at all other times’.  The 1662 rubric, by contrast, makes no separate reference to holy communion.

This means, or so the Privy Council reasoned, that in 1558 clergy were expected to wear different ‘ornaments’ when officiating at holy communion and when officiating at other acts of worship.  In 1662, by contrast, clergy were expected to wear the same vestments (i.e surplice only, or surplice and cope) at all acts of worship, including holy communion.

The Privy Council therefore held, with ruthless logic, that ‘If the minister is ordered to wear a surplice at all times of his ministration, he cannot wear an alb and tunicle … if he is celebrating holy communion in a chasuble, he cannot celebrate in a surplice’ (pp.178-9).

Chancellor Bursell described this interpretation of the Ornaments Rubric as ‘rigorist’.  It was unjust to Mr Purchas.  It may well be true that Eucharistic vestments were officially discouraged and fell into disuse in Elizabethan times, and that there was no wish to revive them in 1662.  It may also be true that the 1662 rubric envisages that clergy will officiate at holy communion in surplices.

However, the 1662 rubric does not forbid clergy from wearing eucharistic vestments.  The Rev Mr Purchas had been charged with an ecclesiastical offence.  In deciding his case, the Privy Council was exercising a disciplinary, indeed a ‘criminal’, jurisdiction.  He should not have been convicted of using Eucharistic vestments without a clearly worded rule positively forbidding such use.  The wording of the 1662 rubric is not nearly clear enough.

The Privy Council’s treatment of the canons of 1603 was also anachronistic.  The canons did not positively forbid Eucharistic vestments, any more than the rubric.  On their wording they do not order surplice only.  They were not directed against 19th century ritualists, but to upholding minimum liturgical standards against a radical Protestantism that wished to do away with all ecclesiastical vestments.

While the original Elizabethan provision for ornaments may have effected a stable compromise, the Privy Council’s interpretation of the Ornaments Rubric merely resulted in anarchy.  Its judgments were ignored by the Church of England, and the study and reputation of ecclesiastical law never recovered.